BOISE, Idaho — This story originally appeared in the Idaho Press.
Idaho Gov. Brad Little flew to Nashville on Tuesday morning for a Republican Governors Association conference, but as he has since July, retained all his duties while he’s gone, rather than relinquishing them to the lieutenant governor.
Lt. Gov. Janice McGeachin has angrily objected to the change – previously, Idaho governors have turned to the lieutenant governor or the next state official in the line of succession to fill in while they’re gone – but hasn’t mounted any legal challenge to it. An Idaho Attorney General’s opinion issued in October found that a court could uphold the governor’s interpretation that the lieutenant governor only steps in as acting governor when the governor is “effectively,” rather than just physically, absent. Courts in states with similar constitutional provisions have split on that question, the opinion noted, with half finding that governors aren’t “effectively” absent when they still can carry out their duties of office remotely.
On Tuesday morning, a volunteer manning McGeachin’s office at the state Capitol for her twice-a-week, half-day office hours said she wasn’t in and wasn’t expected in, but that he’d relay a message seeking comment.
Shortly afterward, McGeachin tweeted, “Once again, Gov. Little violated the State Constitution by leaving Idaho without informing the duly elected Lt. Governor. Idaho’s Lt. Governor is to serve as Acting Governor when the Governor is out of state. Instead, Little informed an unelected reporter.”
The Idaho Constitution, in Article IV, Section 12, says the duties of the governor fall to the lieutenant governor in cases of the governor’s “absence from the state, or inability to discharge the powers and duties of his office.” The legal quibble between Little and McGeachin is over the definition of “absence.” The Constitution doesn’t require the governor to inform the lieutenant governor when the governor leaves the state.
The two officials’ offices are on the same floor in the state Capitol, but McGeachin’s office has largely been closed and locked in recent weeks. She no longer has any paid staff, having overspent her office’s budget for the fiscal year; she lives in Idaho Falls.
Emily Callihan, Little’s director of communications, said the governor is due to return to the state Thursday night.
She also referred to an Oct. 29, 2021 letter that Little sent McGeachin that said, “From time to time my duties as Idaho’s elected Governor require me to travel temporarily out of the state on official business. Consistent with the Oct. 7, 2021 opinion from the Office of the Attorney General (enclosed), mere physical absence of the elected Governor from the state does not invoke Article IV, Section 12 of the Idaho Constitution or transfer any gubernatorial powers from the Governor to the Lieutenant Governor.”
“In the event I am ever unable to perform the official duties of Governor as may be required due to disability, effective absence, or otherwise, rest assured that my staff will notify your office immediately,” Little wrote. And he wrote that barring such a notification, “There is neither a need nor authorization for you to act in an acting Governor capacity.”
Twice before, in May and in early October, McGeachin issued executive orders as acting governor attempting to overturn Little’s policies on local mask mandates and COVID-19 testing in schools. Each time, Little immediately and retroactively rescinded the orders. In October, he did so from Texas, hours before he flew back to Idaho, in line with his office’s new legal position on “effective,” vs. physical, absence.
“He is performing his duties as governor out of state this week,” Callihan said Tuesday.
Little is joining 19 other GOP governors at the RGA conference in Nashville. Callihan said they’re set for policy discussions on issues including the economy, energy and health care.
Little has been active in several organizations with his fellow governors from other states; he currently is the chair of the Western Governors Association, but doesn’t currently hold a leadership position with RGA.
Montana Gov. Greg Gianforte also is attending the RGA meeting in Nashville, his office confirmed; as is Wyoming Gov. Mark Gordon.
McGeachin unsuccessfully challenged Little in the GOP primary last week; he won the eight-way primary with 52.76% of the vote, while she came in second with 32.28%.
Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.
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